State v. West
| Decision Date | 04 December 1973 |
| Docket Number | No. 13037,13037 |
| Citation | 157 W.Va. 209,200 S.E.2d 859 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia v. Marshall WEST. |
Syllabus by the Court
1. Cigarette tax stamps are papers of value as contemplated by Chapter 61, Article 3, Section 14 of the Code of West Virginia, 1931 and are the subject of larceny according to their market value.
2. Although stamps sold by the State Tax Department may not meet the precise requirements of Chapter 11, Article 17, Section 11 of the Code of West Virginia, 1931, as amended, with regard to form, nonetheless they have a market value as De facto tax stamps and, therefore, are the subject of larceny and may be admitted into evidence to demonstrate their existence and fair market value.
3. In a trial under an indictment for simple larceny there is no error in jury instructions which permit the jury to find the defendant guilty of grand larceny, petit larceny, grand larceny by embezzlement, petit larceny by embezzlement, larceny by obtaining property by false pretenses, grand larceny by receiving and transferring stolen property, petit larceny by receiving and transferring stolen property, or not guilty, when there is evidence which might support any of the verdicts.
4. Where a witness takes lengthy notes to the witness stand from which he selects a few portions for the purpose of refreshing his recollection, it is not error for the trial court to restrict opposing counsel's inspection of the notes to those portions of the notes actually used by the witness.
5. In a criminal case it is reversible error for a trial court to overrule a challenge for cause of a juror who is an employee of a prosecutorial or enforcement agency of the State of West Virginia.
Arthur T. Ciccarello, Allan H. Masinter, Charleston, for plaintiff in error.
Chauncey H. Browning, Jr., Atty. Gen., Richard E. Hardison, Deputy Atty. Gen., David P. Cleek, Asst. Atty. Gen., Charleston, for defendant in error.
This is an appeal from a conviction for grand larceny from the Intermediate Court of Kanawha County, West Virginia. In September 1968 a two count indictment was returned against the defendant charging him, in the first count, with larceny of a quantity of cigarette tax stamps worth six thousand dollars, and in the second count with the crime of embezzlement of such stamps. Trial began on September 10, 1969, and the jury found the defendant guilty of larceny on September 19, 1969 as charged in the indictment.
The State argues that the evidence demonstrated that in February 1968, the defendant was employed as an Assistant Attorney General of the State of West Virginia and that he obtained from Chester Tinsley, who was then an employee of the State Tax Department, one hundred thousand cigarette tax stamps. According to the State's witnesses the defendant told Mr. Tinsley that he wanted the cigarette tax stamps for the purpose of setting a trap for 'some crook' in the Wheeling area, and that after obtaining the stamps, the defendant obtained a subjobber's application from the tax department on or about February 28, 1968 and received a license to deal in cigarette tax stamps in the name of Everett Miller.
According to the State's evidence, in March 1968 the Tax Commissioner of the State of West Virginia met with Mr. Yeater and Mr. Shrewsbury, members of the Department of Public Safety, and obtained from them four cartons of cigarettes with hand applied tax stamps. These cartons of cigarettes were then delivered to Chester Tinsley for a determination of authenticity. After Mr. Tinsley received the questioned packages of cigarettes from the Tax Commissioner, he contacted the defendant concerning the disposition of the stamps which he had given the defendant, but Mr. Tinsley received no satisfactory reply. Mr. Tinsley then went to the Tax Commissioner and informed the Commissioner of all the circumstances concerning the tax stamp transaction. The Commissioner gave Mr. Tinsley one week in which to return the stamps, whereupon Mr. Tinsley contacted the defendant and informed him of the Commissioner's deadline. On the following night Mr. Tinsley received a telephone call from the defendant, and following the defendant's directions, Mr. Tinsley went to a restaurant in Kanawha City and obtained a key, and then went to the Greyhound Bus Station in Charleston and recovered a substantial portion of the cigarette tax stamps that he had given to the defendant. Mr. Tinsley then returned the stamps to the Tax Commissioner, and upon an accounting of the stamps, it was determined that approximately thirty-three thousand of the original hundred thousand had been returned. State's witness Clifford Lantz testified that on or about September 7, 1968 he discussed the matter with the defendant, and that as a result of that conversation the defendant made restitution to the Tax Department in money for the missing stamps. Upon all the evidence the jury could have found and did find the defendant guilty of grand larceny by embezzlement.
There are five principal assignments of error. The first is that the State cigarette tax stamps, worth six thousand dollars in the open market, are not the subject of larceny although defendant admits that the paper valued at twenty-seven dollars, is the subject of larceny. The defendant cites in support of his position the case of State v. Crumbey, 81 W.Va. 287, 94 S.E. 137 (1917) which held in part:
'Theft of an incomplete and ineffective paper which, if complete and effective, would call for the payment of money is larceny of the paper only, not of the amount of money it would call for, if complete.'
The Crumbey case involved the theft of railroad transfers and ferry tickets which required either a stamp or counter signature in order to make them effective. Accordingly, the Crumbey case is not on point, as the cigarette tax stamps involved in this case were immediately worth six thousand dollars without any further action on the part of the defendant or the State Tax Department. Chapter 61, Article 3, Section 14 of the Code of West Virginia, 1931, says:
'If any person steal any bank note, check, or other writing or paper of value, or any book of accounts for or concerning money or goods due to be delivered, he shall be deemed guilty of the larceny thereof, and receive the same punishment, according to the value of the article stolen, that is prescribed for the punishment of larceny of goods or chattels.'
It is only by force of this section that bank notes, checks and other writings and papers of value are made the subject of larceny, as at common law they were not the subject of larceny. State v. McCoy, 63 W.Va. 69, 59 S.E. 758 (1907). However, it is obvious that cigarette tax stamps are writings or papers of value as contemplated by Code, 61--3--14, and therefore they are the subject of larceny by virtue of the statute. This Court, therefore, finds no merit to this assignment of error.
Defendant's second assignment of error is that the tax stamps should not have been admitted into evidence on the grounds that they were not legal cigarette tax stamps because they failed to show the value and denomination on the stamps themselves to produce a 'face value'. This argument is grounded in Chapter 11, Article 17, Section 11 of the Code of West Virginia, 1931, as amended, which states:
The defendant argues that without a 'face value,' as demonstrated through words and figures on the stamps, the stamps are merely pieces of paper and are invalid in this case as exhibits, because they are not legal tax stamps.
Code, 61--3--14 speaks of a 'writing or paper of value' and makes that a subject of larceny. Even if the tax stamps in question were not De jure tax stamps, according to the precise directive of Code, 11--17--11, they were certainly De facto tax stamps, and had a value of six thousand dollars on the open market. Accordingly, they were writings or papers of value and could be exhibited to the jury as such along with testimony that the State Tax Commissioner regularly sold them at the fair market value of six cents apiece. Therefore we find no merit to the defendant's second assignment of error.
The third assignment of error is that the court improperly gave State's Instruction No. 2, which said:
'The Court instructs the jury that under the indictment in this case, one of eight verdicts can be returned:
1. Grand larceny.
2. Petit larceny.
3. Grand larceny by embezzlement.
4. Petit larceny by embezzlement.
5. Larceny by obtaining property by false pretenses.
6. Grand larceny by receiving and transferring stolen property.
7. Petit larceny by receiving and transferring stolen property.
8. Not guilty.'
Defendant maintains that under the two count indictment alleging both the crimes of larceny and embezzlement, the State was required to elect upon which count it wished to proceed at the conclusion of the State's case. The State properly elected to proceed on the larceny charge, and defendant now maintains that the instructions which permitted the jury to find the defendant guilty of larceny by embezzlement, larceny by obtaining goods by false pretenses, and larceny by receiving and transferring stolen property were improper, and tended to prejudice the jury against the defendant. For the following reasons this Court does not find merit in this argument.
First, Chapter 61, Article 3, Section 18 of the Code of West Virginia, 1931, provides that:
'If any person buy or receive from another person, or aid in concealing, or transfer to a person other than the...
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